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Ruling pushes decision on Line 3 pipeline into summer

A segment of pipeline sits in the ground in September in Wisconsin.Derek Montgomery for MPR News file

A judge's decision sets back the timeline for state regulators to decide on the fate of a controversial oil pipeline crossing northern Minnesota by potentially two or more months.

State regulators had planned to make a final decision on Line 3 — Enbridge Energy's proposed replacement and expansion of an existing oil pipeline along a different route across northern Minnesota — by April 2018. This new ruling could push that decision to June 2018, if not later.

The ruling, issued late last week by Administrative Law Judge Ann O'Reilly, follows the state Public Utilities Commission's Dec. 7 decision that the Department of Commerce's final environmental impact statement for the project was "inadequate."

The PUC gave Commerce 60 days to amend three fairly narrow aspects of the 5,000-page environmental study, including how one of the route alternatives for the pipeline would need to be changed to avoid sensitive topography in southeast Minnesota.

After that decision, several Indian tribes and environmental groups petitioned O'Reilly, asking her to adjust her briefing schedule. The judge is weighing whether a new Line 3 is needed in Minnesota, and if so, what route the pipeline should take across the state.

O'Reilly then makes a recommendation to the state Public Utilities Commission, which makes the final decision whether to grant Enbridge the certificate of need and route permits it needs to build the new line.

Enbridge argued that despite the inadequacy decision on the environmental study, or EIS, the judge should maintain the initial schedule, which called for her to issue her report to the PUC with a recommendation by March 30, 2018.

That would have allowed the intervening parties to file their briefs with the administrative judge while state regulators were still revising the environmental report, which would have enabled the PUC to make its final decision on the pipeline by April 2018.

But O'Reilly disagreed, writing that "a new briefing schedule is warranted to allow all parties the opportunity to respond to the revised EIS once it is issued."

The schedule she laid out calls for a period of five weeks for the parties involved in the process to file a series of briefs and reply briefs, after the Public Utilities Commission meets to determine the adequacy of the revised environmental study, which is anticipated to occur in mid-to-late March 2018.

The judge then gets two months to file her report, after which the PUC would meet to make its final decision whether to grant Enbridge the necessary permits it would need for Line 3 to proceed.

Enbridge spokesperson Shannon Gustafson said the company is disappointed in the ruling. She called the revisions to the environmental study "very simple follow ups," but said the "cumbersome nature of the process could take until the second quarter of 2018 to finalize."

Gustafson said the judge's ruling contradicted an earlier Public Utilities Commission decision that allowed the two processes — the approval of the environmental study, and the consideration of the certificate of need and route permits — to proceed in parallel.

She said Enbridge is considering asking the PUC to review the judge's decision.

Jobs for Minnesotans, a statewide business and labor group supporting the pipeline, criticized the decision, which it said could delay the project for possibly months.

"It's very disappointing to see yet another in an endless string of delays imposed on a project that will create jobs, protect the environment and provide access to the fuel that drives our economy and society," said spokesperson Nancy Norr.

But the Sierra Club, which has been fighting the proposed pipeline, praised the decision, saying the judge "should take the time necessary to make a thorough and well-informed decision on Line 3."

"It is the responsibility of our government to adequately understand and weigh the environmental and cultural impacts of a project like this when making a decision," said Margaret Levin, state director for the Sierra Club North Star Chapter.

In explaining her decision, the judge called Line 3 a very complex and highly controversial project, which has the potential to impact the waters, environment and people of Minnesota.

She said Enbridge has not shown how delaying the project would impact the operation of the current Line 3, which the company says is corroding and needs to be replaced to maintain the line's safety.

Minnesotans are best served, O'Reilly said, "by investing a few extra weeks now to ensure that the law is followed and a comprehensive review of the project is conducted before a final decision is rendered in this important case."